Advice request - employment law

[euphoria]

Hi
This is my first time posting here and I am seeking some advice.
I own a small business and employ 11 people.
In Jan 2018, one of the staff started having lengthy absences for a variety of reasons. In June 2018 she went off sick and hasn’t been back since.
She exhausted staff and statutory sick pay in jan 2019. The DWP awarded her no benefits (ESA or PIP) She has had all her paid holiday leave.
In Feb 2019 she contacted us to say she wanted to return to work. A phased return was discussed and agreed upon - 2 mornings per week, building up over 8 weeks. She has also changed her role considerably to make her return less stressful and was offered (but she refused) reduced hours. Anyway, after one week (2 mornings) on phases return, she phoned in sick.
When I spoke to her today she said that her workplace is “not good for her mental health”
I’m upset as she hasn’t mentioned the work place being a reason for her absence until today.
I feel I have tried everything in terms of patience, making adjustments to her role, and offering her reduced hours.
My small business and my family life is suffering and I would like to terminate her contract.
Can I do this?
Thanks in advance

[ostell]

How long has she been working for you?

[euphoria]

8 years to date (including these last 15 months absence)
She has had two long absences previously - one for a bereavement and another for an elective foot operation.
While she has been off this time, her reasons given have varied every time she submitted a sick line from the GP.
it is also interesting to note that her GP only ever wrote sicklines for 4 weeks at a time and on most of these ticked the “does not need to be seen again” box.
She has not provided a medical line for this latest absence but has mentioned “the menopause”.

I feel I’m at breaking point - the absence is affecting staff morale (inc my own) as we just never seem to be able to get on track with everything.

Many thanks for responding to my original question.

[ULA]

Unfortunately dealing with an employee on long term sick is not easy. I appreciate you are a small business but do you have a sickness absence policy? How long has she now been off sick since her attempt at a phased return to work?

[euphoria]

Hi there!
So we have an absence policy and are following it.
Her phased return initially was to run for 8 weeks - 2 mornings per week (tues + Fri) for 2 weeks, building to 3, then to 3 full days before going full time again.
She did 2 mornings in week 1, one morning in week 2, then called in sick all of week 3 (should have been 3 mornings)
When we contacted (after the third morning off) her to ask when she might be back, she stated that we were “adding to her poor mental health” and “stressing her out” talking about things.

[ULA]

Does your absence policy allow for getting a medical report, if so I would suggest that is your next course of action? If not I would still suggest that is the next thing you need to be considering. There is a process that you need to go through and if you need some support on this then please just ask.

[euphoria]

Hi
We are currently awaiting the outcome of an occupational health assessment.
I have been following our policy carefully.
The main issue I have is that the employee elected to return to work, then went off sick again while on phased return. This follows 15 months off sick for a whole variety of different reasons.
How many times can an employee initiate a phased return then go off sick, then repeat the process? She will be entitled to another batch of SSP by June 2019 - I have a real fear that she strings us along until then, then goes off again for another lengthy period of time.
How can we get rid of her if she keeps stating she wishes to return and yet doesn’t? This is crippling our small business. And there seems to be very little we can do as employers.
We have already reduced her roles and responsibilities by more than 50% to reduce her stress.

Many thanks for your ongoing help.

[ULA]

Well done on following your policy carefully always a very good start. Did your employee want to see a copy of the report from OH before you get to see it?

The best thing would be to see what that report says and then you can take a more informed decision on the next steps you can take in managing the situation with your employee. Ultimately you can dismiss your employee fairly but it will be ensuring that in doing so you follow the correct process fairly.

[euphoria]

Yes, she asked to see the OH report.
Unfortunately, she has since stated that my partner and I are “harassing” her to get back to work. This following one phone call to check she was happy to sign the consent forms included with the various medical assessment requests, enabling us to see them. I’m hurt beyond belief. We have been nothing but fair and this is how we are repaid.
So it’s in the hands of Occupational Health for now and she has stopped her phased return.
It just feels so one-sided against the employer.
Occ Health have asked for 2 full years of absence and employment records - it paints a picture of understanding employers who have repeatedly allowed a staff member to attend GP appointments, paid additional sick pay over and above contracted amount, and have not ever harassed her about getting back to work.
We are genuinely at our wits end!

[ULA]

I really appreciate that for a small business this is really frustrating situation to find yourself in. So in regard to the report you do really need to wait until you get a copy of it back from OH, it sounds like they are being thorough since they have asked you for her absence records. Have you made it very clear to OH what you are needing them to do as part of their assessment of your employee i.e. prognosis of condition, likely prospects of returning to work, in what timescales and any restrictions on what she can come back to do?

In regard to the "harassing" I suggest that in future all contact with her is minimal and based on following the process set out in your absence policy. Everything needs to be in writing so that there is a transparent paper trail of how you have handled the situation just in case in the future she tries to bring some form of claim against you. I am not saying this will happen but better to have this as the back of your mind when dealing with her to ensure that you are safeguarding yourselves